36 C.F.R. § 800.13

Post-review discoveries

Read at: eCFRecfr.gov CornellLII GovInfogovinfo.gov CasesGoogle Scholar

(a) Planning for subsequent discoveries—(1) Using a programmatic agreement. An agency official may develop a programmatic agreement pursuant to § 800.14(b) to govern the actions to be taken when historic properties are discovered during the implementation of an undertaking.

(2) Using agreement documents. When the agency official's identification efforts in accordance with § 800.4 indicate that historic properties are likely to be discovered during implementation of an undertaking and no programmatic agreement has been developed pursuant to paragraph (a)(1) of this section, the agency official shall include in any finding of no adverse effect or memorandum of agreement a process to resolve any adverse effects upon such properties. Actions in conformance with the process satisfy the agency official's responsibilities under section 106 and this part.

(b) Discoveries without prior planning. If historic properties are discovered or unanticipated effects on historic properties found after the agency official has completed the section 106 process without establishing a process under paragraph (a) of this section, the agency official shall make reasonable efforts to avoid, minimize or mitigate adverse effects to such properties and:

(1) If the agency official has not approved the undertaking or if construction on an approved undertaking has not commenced, consult to resolve adverse effects pursuant to § 800.6; or

(2) If the agency official, the SHPO/THPO and any Indian tribe or Native Hawaiian organization that might attach religious and cultural significance to the affected property agree that such property is of value solely for its scientific, prehistoric, historic or archeological data, the agency official may comply with the Archeological and Historic Preservation Act instead of the procedures in this part and provide the Council, the SHPO/THPO, and the Indian tribe or Native Hawaiian organization with a report on the actions within a reasonable time after they are completed; or

(3) If the agency official has approved the undertaking and construction has commenced, determine actions that the agency official can take to resolve adverse effects, and notify the SHPO/THPO, any Indian tribe or Native Hawaiian organization that might attach religious and cultural significance to the affected property, and the Council within 48 hours of the discovery. The notification shall describe the agency official's assessment of National Register eligibility of the property and proposed actions to resolve the adverse effects. The SHPO/THPO, the Indian tribe or Native Hawaiian organization and the Council shall respond within 48 hours of the notification. The agency official shall take into account their recommendations regarding National Register eligibility and proposed actions, and then carry out appropriate actions. The agency official shall provide the SHPO/THPO, the Indian tribe or Native Hawaiian organization and the Council a report of the actions when they are completed.

(c) Eligibility of properties. The agency official, in consultation with the SHPO/THPO, may assume a newly-discovered property to be eligible for the National Register for purposes of section 106. The agency official shall specify the National Register criteria used to assume the property's eligibility so that information can be used in the resolution of adverse effects.

(d) Discoveries on tribal lands. If historic properties are discovered on tribal lands, or there are unanticipated effects on historic properties found on tribal lands, after the agency official has completed the section 106 process without establishing a process under paragraph (a) of this section and construction has commenced, the agency official shall comply with applicable tribal regulations and procedures and obtain the concurrence of the Indian tribe on the proposed action.

Notes of Decisions

Cited in 13 cases (1 in the last 5 years), 1981–2021 · leading case: Havasupai Tribe v. Heather Provencio, 906 F.3d 1155 (9th Cir. 2018).

Sort: Relevance Newest Treatment

Havasupai Tribe v. Heather Provencio, 906 F.3d 1155 (9th Cir. 2018). · cites it 4× “” Applying the regulation applicable to such discoveries, 36 C.F.R. § 800.13 (b)(3), the Forest Service immediately contacted the Tribe to “enter into government-to-government consultation” to “develop ‘actions’ to resolve or minimize the adverse effects” on Red Butte.”

Havasupai Tribe v. Heather Provencio, 876 F.3d 1242 (9th Cir. 2017). · cites it 4× “36 C.F.R. § 800.13 (b)(3), the Forest Service immediately contacted the Tribe to “enter into government-to-government consultation” to “develop ‘actions’ to resolve ,or minimize the adverse effects” on Red Butte.”

Grand Canyon Trust v. Williams, 98 F. Supp. 3d 1044 (D. Ariz. 2015). · cites it 6× “Instead, the Forest Service undertook a reduced consultation process under 36 C.F.R. § 800.13 (b)(3). The Forest Service sent letters to tribal leaders as well as the Advisory Council on Historic Preservation (“ACHP”), notifying them of renewed operations at the Canyon Mine and…”

S. Utah Wilderness All. v. Norton, 326 F. Supp. 2d 102 (D.D.C. 2004). · cites it 3× “BLM Does Not Have a Duty to Reopen the Consultation Process Plaintiffs finally argue that BLM, in declining to re-open the Section 106 consultation process, violated 36 C.F.R. § 800.13 (b)(1). Plaintiffs aver that Dr.”

Concerned Citizens v. United States Dep't of Transp., 579 F. Supp. 2d 427 (S.D.N.Y. 2008). · cites it 3× “” 36 C.F.R. § 800.13 (b)(1). It is undisputed that the defendants did not conduct a second, formal Section 106 evaluation after plans for the retaining wall expanded to 298 feet.”

Nashvillians Against I-440 v. Lewis, 524 F. Supp. 962 (M.D. Tenn. 1981). · cites it 2× “45 In accordance with 36 C.F.R. § 800.13 (b), a preliminary case report was prepared.”

Nat'l Trust for Historic Pres. in the United States v. U.S. Army Corps of Engineers, 552 F. Supp. 784 (S.D. Ohio 1982). · cites it 4× “36 C.F.R. § 800.13 (a)(4). If the agency finds that the effect is adverse or if the Council does not accept the agency’s No Adverse Effect Determination, the agency must: 1.”

Valley Cmty. Pres. Comm'n v. Mineta, 246 F. Supp. 2d 1163 (D.N.M. 2002). “The PA indicated that, pursuant to 36 CFR § 800.13 , the Defendants, SHPO and others have developed procedures in the PA to ensure the identification and evaluation of historic properties, as well as assessment of effects and development of treatment and mitigation plans for…”

Conservation Law Found.,petitioners v. Fed. Energy Regulatory Comm'n, State of Maine Great N. Paper, Inc.,intervenors, 216 F.3d 41 (D.C. Cir. 2000). “§ 470f; see also 36 C.F.R. § 800.13 (authorizing agencies to delegate this responsibility to “programmatic agreements”).”

Battle Mountain Band of the Te-Moak Tribe of W. Shoshone Indians v. U.S. Bureau of Land Mgmt. (In re in Res., LLC), 302 F. Supp. 3d 1226 (D. Nev. 2018). “See 36 C.F.R. §§ 800.13 -14. Programmatic agreements are particularly useful "[w]hen effects on historic properties cannot be fully determined prior to approval of an undertaking.”

Walsh v. United States Army Corps of Engineers, 757 F. Supp. 781 (W.D. Tex. 1990). “Because numerous cultural resources were identified and confirmed through testing, and the effect of the Applewhite Project through the inundation of these properties would clearly be adverse, the Corps pursued the execution of a programmatic agreement to satisfy the Section 106…”

E. Band of Cherokee Indians v. United States Dep't of the Interior (D.D.C. 2021). “See 36 C.F.R. § 800.13 (b)(3); see also Final EA at 16 (listing EBCI THPO Townsend as contact).”

Show all 13 citing cases →

Annotations are extracted automatically from the opinions in the Syfert caselaw corpus and ranked by authority, recency, and treatment. Dots show Syfertize treatment of the citing case itself.